The Ethic of Precrime in a Surveillance Society - L Ayres

While the concept of being surveilled is not new, there is a trend of apathy increasing at an alarming rate. In their book, Privacy in Peril, 1 Jochelson and Ireland write that “a minimal expectation of privacy yields minimum protections.” 2 In a system where the Courts are meant to be guardians of constitutional rights, yet don’t hesitate to work towards narrowing the scope of those rights by increasing police ancillary powers, an apathy towards those freedoms has the potential to be a dangerous slippery slope. Combined with a decreasing expectation of privacy, expanding police ancillary powers, such as retroactively justified warrantless searches, and increased focus in governance on security, the way has been paved for the formation of a pre-crime surveillance society. 3 The purpose of this legal blog is to explore the effect of increasing apathy due to information oversaturation in an digital age and the potential further degradation of section 8 Charter Rights. 4

Before discussing the prospect of privacy rights eroding further due to a decrease in expectations, it is important to examine the current state of section 8 rights and their interaction with police ancillary powers granted by the court. Section 8 of the Charter states: “everyone has the right to be secure against unreasonable search or seizure.” 5 The beginning of restricting the legal definition of privacy and the expansion of “discretionary authority of state agents” 6 began with R v Waterfield, 7 which was adopted into Canadian law by the Supreme Court of Canada in R v Dedman. 8 With the adoption of the Waterfield test the “means to create new warrantless common law powers for the police” 9 were established. These ancillary powers allowed for the expansion of police powers which can be retroactively used to justify an infringement on s. 8 rights to privacy through justifiable search and seizure. 10 The expansion of police powers to infringe the privacy of citizens is one example of how the Courts have lessened the s. 8 rights of Canadians.

The right for warrantless searches based on reasonable suspicion has a narrowing effect on privacy rights for Canadians. These new rules of law have “implicitly shaped our legal definition of privacy but have done so . . . in a manner that supports a narrow conception of privacy.” 11 This new, narrow definition of privacy has had the effect of supporting “expansion of the discretionary authority of state agents” 12 rather than constraining it. With adoption of the Waterfield test, the Court has increased the power of state agents, thus decreasing rights enshrined in the Charter that they purported to be the guardian of. By lowering the grounds for search and seizure standards to reasonable suspicion, privacy interests were also lowered. 13 While lowering of privacy interests is concerning in itself, the issue of lower privacy rights of Canadians are compounded by a decreased societal value of privacy.

The social value of privacy has become somewhat of a diminishing expectation. With information overload and constant systematic surveillance by various parties, the expectation of a low level of privacy has become more normalized. With growth of the information state, a more “focused, systematic and routine nature of government surveillance,” 14 the social value of privacy has diminished. Lives of individual citizens have become shaped by surveillance to the point where infringement on their privacy has become normalized. The governance system of increased security in which Canadians live now reduces the protection of privacy has “fed into a governing ethic of precrime” 15 which aims to stop crimes before they happen. While the goal may be honourable, the magnitude of infringement on privacy rights is not constitutional; however, with a more docile citizenry these constitutional rights issues may be challenged less and less.

The line between a justifiable intrusion of privacy in the name of protecting against criminal activity has been moved through jurisprudence through the years; however, the decreased value for privacy has the potential to allow for a slippery slope of infringements. As we move into an era of mass amounts of information output enhanced by technology, rules surrounding a justified infringement of privacy rights through search and seizure powers become more and more relevant in discussion of the possibility of a surveillant state. In the current state of ancillary doctrine surrounding search and seizure powers of the police, “that which is not expressly forbidden may be permitted, but only after the fact” 16 constitutes a law of surveillance. This law of surveillance is the basis on which a “governing ethic of precrime” 17 has been established.

This precrime governing method does not seem to have a trajectory which aims to expand and protect the privacy rights of Canadians, quite the opposite. The concept of rights preventing the unjustified state intrusion on individual privacy through search and seizure being limited and narrowed more in coming years is a frightening – yet seemingly unavoidable – prospect. While an unjustified search and seizure of a person and their tangible personal belongings seems an unsettling sight, it is important to keep in mind a person’s right to privacy does also extend to information about themselves as well. While search and seizure of a person or their physical belongings is tangible, the unjustified intrusion on the information of an individual, be it the technological footprint left by a google search or the geographical locations of an individual, citizens in today’s information society seem to be more compliant to the infringement on these privacies. If “only a reasonable expectation of privacy is protected by section 8” 18 and “a minimal expectation of privacy yields minimum protection,” the trajectory of expectations, and thus protection, of privacy does not look hopeful.

Looking to the future, the prospect of increasing technologies with information storing and sharing capabilities are great; the question prompted by this is what the impact will be on the right to privacy supposed to be enjoyed by Canadian citizens. While this may seem borderline conspiracy theory, the reality of increasing infringements on privacy of Canadians is very much a concern. Setting aside the argument that what is done in public does not fall under the scope of actions protected under section 8, and the expansion of public spaces via social media and other platforms, there are still areas protected under the Charter where personal information could be surveilled under a justified search and seizure action. This goes along the lines that you ought not be scared if you have nothing to hide. This is a concerning rhetoric when it comes to the influence it may have on public value of privacy. Valuing privacy does not automatically mean an individual has something to hide; however, this seems to be forgotten in an era where information and personal details are so easily collected.

A person is innocent until proven guilty in Canada’s legal system. This is an idea that is no longer so certain. With the move towards a surveillance state in which the governing ethic is one of a preemptive fight to stop crime before it happens, more and more it seems the truth is actually reversed: an individual is guilty until proven innocent. Through expansion of police ancillary powers, the narrowing definition of what constitutes privacy, and the seeming abandonment of the Supreme Court’s guardianship of this Charter right, the stage is set for the concept of personal privacy to be slowly stripped away. This move towards state-surveillance and disregard for personal privacy is hastened by current normalization of infringements on privacy as societal value for the right seems to be declining at a rapid pace. This is not to say there is no hope for a future where the legal definition of privacy is expanded and valued more highly; however, the current trend does not appear to be going this way. Moving forward, it will be important for the protection of privacy rights that the Court once again take up its self-proclaimed role of the guardian of Charter rights, as these rights are an important factor of a free and democratic society.

Endnotes...........................

1 Richard Jochelson & David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections, (Vancouver: UBC Press, 2019).

2 Ibid at 135.

3 Ibid at 69, 96 & 144.

4 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

5 Ibid.

6 Austin, Lisa M, “Surveillance, the Charter and the Rule of Law” (2012) 27:3 CJLS at 383

7 R v Waterfield [1964] 2 CCC 286 [1964] 3 All ER 659 [Waterfield].

8 R v Dedman, [1985] 2 SCR 2, 20 DLR (4th) 321 [Dedman].

9 Jochelson, supra note 1 at 76.

10 Ibid at 79 & 96.

11 Austin, supra note 6 at 383.

12 Ibid at 383.

13 Jochelson, supra note 1 at 73.

14 Cockfield, Arthur, “Surveillance as Law” (2011) 20:4 Griffith L Rev at 799.

15 Jochelson, supra note 1 at 144.

16 Ibid at 101.

17 Ibid at 144.

18 Ibid at 137.

19 Ibid at 138.